For anyone with an
interest in the complexities inherent in the interviewing of children in cases
of alleged sex abuse this article, though more than 20 years old, makes a good
starting point for discussion. It is a little long-winded but should be read by
all NGOs who rely on the testimony of children to secure convictions against
alleged sex abusers.
Interviewing Methods and Hearsay Testimony in Suspected Child Sexual Abuse Cases: Questions of Accuracy
Judith K. Adams
ABSTRACT: It is difficult to obtain accurate information from young children.
The potential inaccuracies in hearsay testimony are a crucial issue because of
the likely due process violations created by inaccurate and unreliable hearsay.
The current research on interviewing
techniques which may compromise the reliability of children's testimony is
summarized and methods of increasing the accuracy of interviews and hearsay
testimony are discussed. It is particularly important to videotape all
interviews with the child.
In the past two decades, the United States has seen
a dramatic increase in the number of sexual abuse reports. The trend has
continued during the past 10 years, with the number of reports of sexual
maltreatment of children rising steadily from 325,000 in 1985 to nearly half a
million in 1992 (Lamb, 1994). Unfortunately, because of its very nature, child
sexual abuse usually occurs in private with no witness other than the alleged
perpetrator and the victim. Investigators must depend on children's accounts or
physical evidence in order to determine whether or not allegations of sexual
maltreatment are valid. Medical evidence, however, is seldom sufficient
to identify a specific perpetrator, and many forms of sexual abuse do not leave
any physical signs. When physical evidence is absent, the only remaining
alternative is to obtain information from the child witness.
Questions concerning the
reliability and credibility of children's accounts are often raised in
adversarial legal proceedings, and these have
fostered a highly contentious debate concerning the value and limitations of
children's testimony (Lamb, 1994). Bruck and Ceci (1995) observe that the field
of interviewing children, with concerns about the suggestibility of
children's testimony, is a rapidly expanding area and reviews of the
literature that were published only a few years ago are now out of date.
Assertions about research methodologies and results made as recently as 1991
may no longer be valid.
Bruck and Ceci (1995) note that the current
research indicates that certain interview conditions have a high
risk of contaminating young children's reports. Contrary to
previously-held beliefs, errors made by children in reporting sexual abuse are
not limited to errors of omission (i.e., failure of the child to report
important events). Under certain conditions, young children can also make errors of
commission about personally experienced events involving their own bodies i.e.,
reporting that an event occurred, which, in fact, did not occur. Ceci
and Bruck make no distinction between interview and investigation and they
define an "interview" as any discussion with any person, whether it
is a parent, a teacher, a social worker, an attorney, or a law enforcement
officer. Their research calls into question the validity of the axiom that
"children never lie about sexual abuse." Several researchers
in the field of children's testimony say the assumption that children never lie
about sexual abuse is unwarranted (e.g., Ceci & Bruck, 1995; Wakefield
& Underwager, 1989).
Several factors affect the
likelihood of children giving misinformation about personal events. Foremost
among these are the interviewing methods which are used in obtaining the
testimony. Repeated questioning, delayed questioning, suggestive and misleading
interviewing, the emotional tone of the interview, and the status of the person
conducting the interview can all have a significant negative impact on the
testimony which is obtained from the child. Furthermore, if the interviewer has
a bias that sexual abuse has occurred, the interviewer's methods of questioning
will be adversely affected and the child's response or testimony will be
consistent with the interviewer's bias.
Improper Interviewing Methods and Their
Negative Affect on Children's Testimony
Interviews with children in suspected
sexual abuse cases far too often are conducted using improper interviewing
techniques. Mapes (1995) has identified a continuum
of questioning methods, ranging from spontaneous disclosure by the child with
non-leading techniques, through minimally leading, moderately leading, to
maximally leading techniques. Mapes notes that if the
child is presented with inaccurate post-event information, interpretations, or
explanations, the misleading information will modify the child's memory of the
event being recalled. Generally speaking, the younger the child, the more
likely the child will accept someone else's interpretation of an event if it
bears a resemblance to the original event.
Numerous studies demonstrate that improper interviewing
methods may negatively affect the reliability of children's testimony.
The New Jersey Supreme Court, in State v. Michaels, relied on the social
science literature on child witnesses and "accepted as its central inquiry
whether the interview techniques used by the State in this case were so
coercive or suggestive that they had a capacity to distort substantially the
children's recollections of actual events and thus compromise the reliability
of the children's statements and testimony based on their recollections"
(McGough, p. 371).
Although a full discussion of the relative
strengths and risks of various interviewing methods is beyond the scope of this
review (for a complete review of recent literature see Adams, 1995), the
following discussion summarizes techniques that can potentially contaminate the
child's testimony.
Repeated Questioning
Several studies show that
asking children the same question repeatedly within an interview and across
interviews often results in the child changing his or her answer (Ceci & Bruck, 1995; Poole & White, 1991). Preschool age
children are particularly vulnerable to the contaminating effects of repeated
questioning. Bruck and Ceci (1995) note that children seem to reason, "The
first answer I gave must be wrong, that is why they are asking me again.
Therefore, I should change my answer" (p. 279). They cite studies in which
children
who were questioned in a contradictory manner quickly changed their stories to
conform to the suggestions and beliefs of the interviewer. Suggestions planted in the first interview session were quickly taken up
and mentioned in the second interview session. This means that if a child is
originally interviewed using improper methods, the "testimony" of
that child can be contaminated through all subsequent interviews.
In the highly publicized Wee Care case, Ms. Kelly
Michaels was accused of hundreds of counts of sexual abuse and later convicted
of 115 counts of sexual abuse against 20 three- to five-year old children. She
was said to have licked peanut butter off children's genitals, played the piano
while nude, made children drink her urine and eat her feces, and raped and
assaulted these children with knives, forks, spoons, and Lego blocks. She was
accused of performing these acts during regular school hours over a period of 7
months. During this time, none of the alleged acts were noticed by staff or
reported by children to their parents. Ms. Michaels was later sentenced to 47
years in prison, but was released on bail after 5 years (Ceci & Bruck,
1995).
In addition to conversations likely held between
the children and their parents, the children were repeatedly interviewed by a
child therapist, by an investigator for the Division of Youth and Family
Services, and by an expert for the prosecution. Bruck and Ceci (1995) analyzed
available audiotapes of the interviews and describe the highly suggestive, coercive, and
inappropriate interview techniques. They note that the children
who ultimately became witnesses in court were interviewed dozens of times
before they "testified." The risks of contamination of the
children's testimony were mammoth. The interviewers' misconduct in conducting
the interviews furnished the pivot of the New Jersey appellate's decision to
reverse Kelly Michaels' conviction (McGough, 1995). (For a more detailed
description of that case and other famous day-care cases, see Bruck and Ceci
[1995] and Ceci and Bruck [1995]).
Unfortunately, repeated interviewing is far more likely to
be the rule rather than the exception in suspected sexual abuse investigations.
Until the recent past, the potential risks of contamination of the child's
testimony by improper, in this case, repeated questioning has been widely
overlooked.
Suggestive or Misleading Questioning
A number of studies show that repeatedly giving
children misleading information in a series of interviews can have serious
effects on the accuracy of their later reports. Not only can misinformation
become directly incorporated into the children's subsequent reports, it can
also lead to fabrications or inaccuracies which do not directly mirror the
content of the misleading information or questions. It is now known that misinformation
presented in initial or early interviews can taint the testimony that the child
gives later. In other words, as Bruck and Ceci (1995) note, the
"primary evidence has been destroyed" (p. 272). After the use of improper
interviewing methods, a determination of what, in fact, actually happened to
the child becomes virtually impossible.
Investigators approaching a crime scene are taught
not to touch objects, weapons, or features of the surroundings because of the
imminent risk of destroying the evidence. Yet investigators in repetitive child
sexual abuse cases appear to have no knowledge whatsoever of the potential of
their own interviewing methods in destroying the evidence, i.e., the child's
testimony.
Emotional Tone of the Interview
Children may give incorrect information to
misleading questions when the interviewer creates an emotional tone of
accusation (Bruck & Ceci, 1995). In some studies, when an accusatory tone
is set by the examiner, children may fabricate reports of past events even in
cases when they have no memory of any event occurring. Goodman, Wilson, Hazan,
and Reed (1989) demonstrated that "an atmosphere of accusation" can
be created, in which children will produce reports of abuse when none has
occurred.
Effects of Peer Pressure
In some cases, interviewers
have told children that their friends have "already told" about being
abused, even when this is not true. Bruck
and Ceci (1995) note numerous examples of the use of peer pressure in the Wee
Care case, both by telling the child what other children had allegedly
reported, and by threatening to tell other children that the child being
interviewed had been uncooperative. In one example, the interviewer said,
"Oh, come on, we talked to a few more of your buddies. We talked to
everyone now. And everyone told me about the nap room, and the bathroom stuff
and the music room stuff and the choir room stuff and the peanut butter stuff
and everything. Nothing surprises me anymore."
Effects of Being Interviewed by Adults
with High Status
Young children are sensitive
to the status and power of their interviewers
(Bruck & Ceci, 1995). As a result, they are especially likely to comply with
the implicit and explicit agenda of such interviewers. Children are more likely
to believe adults than other children, they are more willing to go along with
the wishes of adults, and are more apt to incorporate adults' beliefs into
their reports.
Children's testimony is susceptible to
contamination from several factors. The legal system, according to McGough
(1995), does little to insulate a child from this susceptibility; on the
contrary, it compounds and undermines a child's resistance. Substantial
intervals often occur between the observed events and testimony at trial.
Multiple pretrial interviews are conducted. Interviewers who are authority
figures (police officer, prosecutor, parent, or counsel) may consciously or
unconsciously influence the child's accounts. In light of these
factors, substantial impairment and distortion of a child's memories seem
inevitable.
Effects of Interviewer Bias on Children's
Reports
Several researchers note a distinct
"confirmatory bias" on the part of interviewers, i.e., that abuse has
occurred and the purpose of the interview is to get the child to admit the
abuse. Bruck and Ceci (1995) observe that some interviewers blindly pursue a
single hypothesis that sexual abuse has occurred and fail to explore rival
hypotheses that might explain the behavior of the child. When Bruck and Ceci
reviewed tapes in the Wee Care case, they found them replete with interviewer
bias. They report that when children said something that was not part of the
interviewer's hypothesis, the interviewer ignored it.
When interviewers of the children in the Wee Care
case were asked how they conducted their interviews, one admitted that
"her goal was to induce the children to discuss sexual abuse" (Bruck
& Ceci, 1995, p. 278), while another primary interviewer stated, "The
interview process is in essence the beginning of the healing process" (p.
279). A third of the primary interviewers said, "So you open the interview
in an effort to disempower (the accused person) of these super powers that she
allegedly has . . . and also to let the children know that telling about these
things was okay and they would be safe" (p. 279). Such statements reveal a
clear assumption that abuse has occurred and demonstrate that these
interviewers held preconceived biases that pervaded their interviewing methods
and subsequent conclusions.
In a study conducted by Pettit, Fegan, and Howie
(1990), children who were interviewed by biased interviewers gave the
most inaccurate information. If an interviewer's belief was contrary to what
the child had experienced, interviews were characterized by an overabundance of
misleading questions which resulted in children providing highly inaccurate
information.
It is generally recognized that the
most reliable and accurate information is obtained from children who are
responding to open-ended questions designed to elicit free narrative accounts
of events that they have experienced. When direct questions are asked,
they should be formulated as non-suggestively as possible, using
developmentally and individually appropriate vocabulary and sentence
construction. Repeated, highly-leading, or suggestive questions asked in an
accusatory manner are most likely to promote distortion on the part of the
child and may introduce details that are incorporated into and contaminate
subsequent accounts (Lamb, 1994, p. 155).
In short, a great deal of emerging literature
reveals that the credibility and reliability of testimony obtained from children may
be compromised when improper interviewing methods are used. Several
major concerns emanate from this discussion. As noted above, repeated
interviews or interviews employing improper questioning methods can
irreversibly taint the evidence, i.e., destroy the original testimony
of the child, as early as the second interview. Improper questioning, even if the
interviewer is unaware of using improper methods, can also destroy the primary
evidence. Any attempt that is made to re-evaluate, re-examine or
cross-examine the testimony of the child for presentation to a jury after
several interviews may fail, since accurate information may no longer be
obtained. The more interviews to which the child has been
subjected, the greater the likelihood that the child's testimony has already
been contaminated.
Risks of Inaccuracies in Hearsay Testimony
in Child Sexual Abuse Cases
Hearsay testimony from mental health and other
professionals plays a key role in many child sexual abuse cases. Compounding
the risks of contamination from improper methods of securing testimony from the
child, the resultant hearsay testimony is fraught with dangers of inaccuracy.
Mental health practitioners or others who testify on behalf of the child are
not necessarily accurate in their statements about what the child testified and
may misinterpret what the child said.
McGough (1995), addressing the issue of hearsay in
cases of child abuse, notes that most child abuse trials do not depend solely
on in-court testimony of the child witness. Although rules of evidence prefer
in-court testimony, many types of "hearsay" — out of court statements
— are admissible. In a great number of cases, the child does not testify
directly, but a medical or mental health practitioner testifies regarding
alleged reports obtained from the child, which is hearsay testimony. In such
cases, the child is considered, by legal criteria, to be "psychologically
unavailable" to testify directly. According to McGough (1995), there are
four primary dangers when hearsay is received as trial evidence:
1. Faulty memory — the danger that the declarant
will forget key material;
2. Ambiguity — the danger that the meaning intended
by the declarant will be misinterpreted by the witness, and hence, the fact
finder;
3. Misperception — the danger that the declarant
misjudged, misinterpreted, or misunderstood what she heard or saw;
4. Lack of candor — the danger that the declarant
will consciously lie.
Faulty Memory
The first potential danger to the accuracy of
hearsay is the faulty memory of the declarant. A number of researchers (Bruck
& Ceci, 1995; Ceci & Bruck, 1993; Loftus & Davies, 1984; Loftus
& Ketcham, 1991) have provided scientific evidence which bears on the
potential danger of faulty memory on the part of the child witness. A
complete discussion of children's memory difficulties could fill and has
already begun to fill volumes. Summarizing the memory literature in a few
sentences is difficult, but generally, memory can be seen as constructive, often
inaccurate, and susceptible to numerous influences which reduce accuracy.
The reader is directed to the published works of these authors for more
complete analysis. Such studies are intriguing from the scientific standpoint,
but appalling from the legal standpoint, with heavy implications for the
judicial system.
Here the possibility of faulty memory on the part
of the hearsay declarant, i.e., the mental health professional, must also be
considered. Bruck and Ceci (1995) have pointed out that hearsay declarants'
statements are likely to be affected by faulty memory. According to these
authors, adult interviewers are often inaccurate in recalling what was said or
what took place in an interview. Neither the interviewer's remembrance of the
interview nor the written documentation of the interview may be accurate. In
general, adult remembrance of interviews is inaccurate. When asked to recall
conversations, most adults may recall the gist, but they cannot recall the
exact words used, nor the sequences of interactions between speakers. Bruck and
Ceci (1995) observe that written summaries of unrecorded interviews may be
subject to a number of distortions, and conclude that summaries of missing
interviews do not substitute for an audio or video recording.
Ambiguity
The second danger affecting hearsay testimony,
ambiguity (McGough, 1995), is also prominent in child sexual abuse
investigations. For example, for mental health professionals to ask a
four-year-old child if someone "touched" him or her invites
inaccuracy. The child who is four years old often cannot distinguish a general,
affectionate touch from a sexualized touch. The child may honestly relate, on
the basis of a concrete interpretation of the word "touch," that he or
she was "touched." The investigator may interpret this as
meaning that the child was touched in a sexual way, whereas the child may have
been referring to a non-sexual touching. Immediately, an allegation of sexual
abuse arises, with tremendous personal and social costs to all involved.
Other terms such as "private parts,"
"bottom," or "rubbing," may be interpreted differently by
the interviewer and the interviewee. Ambiguity is also present in questions
such as, "Did he/she hurt you?" "Was it a good touch or a bad
touch?" or "Did the hug make you feel yucky?" When hearsay
testimony is given on the basis of such ambiguous questioning, the risks of
inaccuracy are increased.
Ceci and Bruck (1995) provide several examples of
ambiguity, one being the fact that some summaries of interviews are written in
such a way as to make one believe that children made spontaneous and detailed
statements about sexual abuse. But review of transcripts reveals that children
only responded "yes" or "no" to a barrage of leading
questions.
Misperception
The third danger to the accuracy of hearsay
identified by McGough (1995) is the risk of misperception, the danger that the
(hearsay) declarant misjudged, misinterpreted, or misunderstood what he or she
heard or saw. Recent social science literature indicates that "if
the interviewer has a bias that the child was sexually abused, this can color
his interpretation of what the child said or did; and it is this interpretation
that appears in the summary rather than a factual account of what
transpired" (Ceci & Bruck, 1995; p. 243).
Bruck and Ceci (1995) note that the
failure to have audio- or videotaped records of the initial interviews with
children makes it impossible to determine the accuracy of their subsequent
statements. In reviewing the methodologies used to interview children,
when repeated or other improper questioning methods may have been used, it is
crucial to know whether and how often the interviewer asked the child leading
questions. We must know whether the interviewer "prodded the child's
report" (p. 307).
Lack of Candor
During the past several years, investigators have
focused a great deal of attention of the last potential danger, lack of candor.
The issue of whether children can, will, or do lie has been hotly debated.
Debate has also taken place over whether children are capable, i.e., have the
intellectual or emotional capacity to lie. The argument is made that children
do not have the intellectual ability to "conspire" and they could not
possibly have the knowledge base upon which to base a lie about sexual abuse.
Inaccuracies in children's testimony are not likely
to be the product of a methodical conspiracy or a premeditated plan to
dissemble. Wakefield and Underwager (1989) indicate that "unless there is
strong evidence of deliberate, intentional dissembling, it is foolish to spend
much time or energy on the question of children lying." Yuille et al.
(1993) also indicate that "false allegations" can take a variety of
forms. Older children, such as adolescents, may deliberately make false
accusations, while under other circumstances a false allegation may arise
without a deliberate and willful attempt to dissemble on the part of the child.
Several studies now suggest that children as young
as four years old can differentiate a lie from a truthful statement (Haugaard
& Crosby, 1989), can keep secrets, at least part of the time (Bussey, Lee,
& Rickard, 1993), and may lie to conceal a misdeed (Stouthamer-Loeber,
1987). An inaccurate report can arise as the result of other factors, which are
far more productive to explore.
However, in the current discussion, the lack of
candor is not on the part of the child, but on the part of the hearsay
declarant. Dawson (1996), in documentation to the Texas Legislature, alleged
falsification of records and investigative impropriety by the child protective
agency. A recent address to the Annual Conference on Child Abuse and Neglect
(McAlexander, 1996) claims that "system professionals" may be
motivated by financial and personal (job-retention) motives. This author has
heard of child protective service workers falsifying under oath, with the
rationalization that "I will say anything I have to say to protect a
child." Such inferences are shocking in consideration of possible
lack of candor in hearsay.
McGough (1995) argues that all four of these
dangers are inherent in statements volunteered by a child. The reliability
risks escalate dramatically when the children's statements are the product of
an investigative interview. Pretrial hearsay statements obtained through the
use of improper interviewing techniques may be irreparably tainted by
suggestive influences.
Due Process Considerations Related to
Improper Interviewing and Inaccurate Hearsay
The preceding discussion has shown that questions
can be raised about the techniques used to obtain or elicit testimony of abuse
from the child. Additional questions can be raised about the hearsay
declarant's account of what the child disclosed, since such hearsay may be
inaccurate. The unreliability of the interviewing methods and the accuracy of
the hearsay then can lead to subsequent questions regarding due process of law.
According to Riffe (1993), child abuse cases present a
delicate balance of conflicting interests, those interests being the protection
of the alleged victim from further harm and the accused's right to
confrontation of the accuser. Legislatures have attempted to provide
the courts with means to reach that balance by broadening allowable evidence to
include more than the child's live courtroom testimony. Such legislative
efforts, notes Riffe, run dangerously afoul of the accused's right under the
Confrontation Clause of the United States Constitution which requires that the
accuser testify face-to-face before the accused and the jury in the courtroom.
Smallwood (1992) provides an in-depth discussion of
admissibility of hearsay statements in criminal and juvenile child sexual abuse
cases. Smallwood noted that the "Evidence" section of the Oklahoma
Evidence Code, Title 22, Criminal Procedure (22 O. S. Suppl § 752 and 753)
prescribes the manner in which testimony from an alleged child victim can be
presented to a jury other than by the traditional in-court face-to-face
witness/accuser setting. Initially, the hearsay statement (from a mental health
professional) could only be admitted if there was corroborative evidence of the
act, in cases where the child is unavailable as a witness. However, Section 752
has been amended, deleting the requirement that there must be corroborative
evidence of the act.
Section 2801.3 defines the manner in which the
court is to determine whether a hearsay statement of a child under the age of
twelve (12) in either a criminal juvenile proceeding or in a sexual abuse case
can be admitted. That section provides that the hearsay statement can be
presented if the court finds, in an out-of-court hearing, that the statement
provides sufficient indicia of reliability and that the child either testifies
or is available to testify at the proceedings, or is unavailable as defined by
the Oklahoma Evidence Code (Section 2804). Smallwood notes that, in order to
admit an out-of-court (hearsay) statement, the court is required to find that
the "time, content, and totality of circumstances surrounding the taking
of the statement provide sufficient indicia of reliability as to render it
inherently trustworthy." Riffe (1993) provides clarification of the
constitutional application of "indicia of reliability" from Britt v.
[Oklahoma] State, explaining that:
(t)he manner the prior testimony was taken
sufficiently assured reliability (as follows:) the (witness's) statement at
preliminary hearing had already been given under circumstances closely
approximating a trial; (the witness) was under oath; (the defendant) was
represented by counsel . . . ; (the defendant) had every opportunity to
cross-examine (the witness) as to the statement; and the proceedings were
conducted by a judicial tribunal, equipped to provide a judicial record of the
hearings" (parentheses in original).
The Supreme Court of the United States ruled in Idaho
v. Wright that admission of child's hearsay statements violated the
Confrontation Clause of the Sixth Amendment. The Supreme Court decision held
that the court must determine "particularized guarantees of
trustworthiness," requiring that such "trustworthiness guarantees
must be shown from the totality of those circumstances that surround the making
of the statement and render the declarant particularly worthy of belief." Statements
admitted under hearsay exceptions must be "so trustworthy that adversarial
testing would add little to its reliability."
The overarching question is whether statements
obtained from a child prior to a judicial proceeding and offered as hearsay
declarations can indeed meet the requirements of "sufficient indicia of
reliability." The emerging social science literature suggests that
improper interviewing and investigation methods may seriously impugn the
trustworthiness or reliability of the "evidence" itself. Moreover, the
literature suggests that improper questioning can, in effect, destroy
the primary evidence — the testimony of the child — such that cross-examination
of the child can no longer produce reliable information.
Admissibility of hearsay testimony should also be
carefully considered in light of the dangers inherent in such hearsay.
Professionals providing hearsay testimony may have unknowingly misjudged,
misinterpreted, or misunderstood the statements of the child. It can be argued
that such hearsay testimony does not meet criteria of "sufficient indicia
of reliability" and very likely fails the test of "particularized
guarantees of trustworthiness." The due process rights of the defendant
could therefore be violated by the admission of such hearsay. All persons in
the legal and judicial arena should be aware of the powerful impact the recent
social science literature has on this issue.
Rationale for Videotaping of All
Interviews with Children
Several authors have argued that one possible answer to the question of reliability is to videotape all
investigatory interviews with children.
Arguments in favor of videotaping have been made by a several authors (e.g.
Bruck & Ceci, 1995; Ceci & Bruck, 1995; Gardner, 1995; Wexler, 1995).
These authors argue that videotape records of the
interviews allow later review of questioning methods, shelter the child from
subsequent stressful court proceedings, and
are useful from a legal perspective. However, in the past, videotape recording
of interviews did not have substantial support from a legal viewpoint. McGough
(1995) notes that there is little authority from U.S. Supreme Court precedent
that would support an assertion that a prosecutor has a constitutional duty to
(mechanically) record and preserve an account of a pretrial interview with a
potential child witness. In fact, failure to record interviews (Idaho V.
Wright) or discarding of investigators' notes (Arizona v. Youngblood)
were not found by the Supreme Court to violate due process.
While there have not been U.S. Supreme Court
determinations requiring videotape recording, several states have moved closer
to such requirements. For example, the Supreme Court of Florida decided that
“Experts generally agree that contacts between a
child and an expert evaluating the child for sexual abuse should be videotaped
to ensure the trustworthiness of the communications and to ensure that the
expert did not lead the child during the evaluation . . . [W]e can only hope
that in the future greater care will be taken to properly preserve testimony in
this type of case and that judges will carefully adhere to the trustworthiness
and reliability requirements set forth in [our statutes] (McGough, 1995, p.
379).”
Similarly, the Idaho Supreme Court considered the
failure to preserve any reviewable record of an evaluative interview with the
child to be unprofessional conduct, and that failure clearly inclined it to find
the hearsay report of the child's allegation to be untrustworthy and
inadmissible (Idaho v. Wright; State v. Giles). On the basis of
these decisions, it would appear that the reliability of hearsay testimony is
seriously questioned.
Professionals who advocate for
video or audio recording of all interviews with children argue that taping will
reduce dual risks of improper interviewing and inaccurate hearsay. McGough (1995) states that hundreds of cases can be used to illustrate
the hazards of distortion when there is no taped record of an investigative
interview. She has proposed legislation which outlines the criteria for a
"qualifying videotape," including interviewing
promptly, requiring the interviewer to be a neutral professional not aligned
with either the prosecution or the defense, and taking measures to assure
privacy to the child, and to communicate the
seriousness of the purpose of the interview (footnote # 48, p. 380-381).
From the scientific as well as the legal
standpoint, videotaping is advisable. Bruck and Ceci (1995) assert that failure
to tape record initial interviews with child witnesses rules out the
possibility of ever reaching any firm conclusions as to whether any abuse
actually occurred, because the primary evidence has been destroyed. We
must also know the verbatim statements and questions of the interviewer as well
as the verbatim responses of the children. Absent a videotaped record, the fact
finder cannot discern what actually happened at the critical pretrial
interview.
Videotaping of interviews with
children is also recommended for the sake of the child. Videotaping can reduce
the number of interviews to which the child is subjected, with each interview
likely to produce some stress to the child
(Lamb, 1994). Therefore, videotaping should be viewed
as advisable by child advocates who are interested in protecting the child from
the trauma of repeated, confusing, and possibly suggesting or coercive
questioning.
Some states, notably New Jersey, have been hesitant
to enact statutes authorizing or requiring videotape recording requirements for
fear that the use of a videotape as trial evidence would be held as
unconstitutional. The account of the interview, if under oath, is an ex
parte, or out-of-court, affidavit purposely created as a testimonial
memorial for use at trial (McGough, 1995). However, the appellate courts of six
states (Kansas, Louisiana, Minnesota, Missouri, Texas, and Wisconsin) have
upheld the constitutionality of their state videotaped evidence statutes when faced
with confrontation or due process questions.
Some professionals, McGough (1995) points out, have
urged that interviews not be recorded due to their misgivings that a videotape
could be used inappropriately to discredit a child and to exaggerate inconsistencies.
McGough counters that argument by stating that the desire to protect a child
cannot justify the suppression of information simply because it might somehow
detract from the child's credibility.
These arguments are not particularly new and the utility
of videotaping of pre-trial interviews was assessed by the California Child
Victim Witness Judicial Advisory Committee. Beginning in 1988, two pilot
programs tested the effectiveness of the use of multidisciplinary teams and
videotaping of interviews. Results were reported in 1994, with remarkably
positive results (Myers, 1994). The California Pilot Project found little to
support the fear that defense attorneys received "too much
ammunition" to attack the child. The professionals surveyed believed that
when interviews were conducted competently, there was nothing to hide. The
second argument against videotaping is that the recording shifts the focus away
from the child's account to the interviewer's mistakes. The Pilot Project found
little support for this claim. The third and fourth arguments against video
recording involved relatively minor technological criticisms. When adequate
protocols were established for insuring videotape quality, fears about the
adequacy of the record disappeared. Finally, confidentiality issues pertaining
to videotapes are quite easily addressed (McGough, 1995; Myers, 1994).
Discussion and Conclusions
Both from the scientific
psychological community and from the legal community, serious concerns have
been raised about the accuracy and reliability of testimony pertaining to
children in suspected sexual abuse cases. A host of improper interviewing
techniques have been identified, all of which can seriously compromise the
reliability of testimony obtained directly from a child. Improper questioning
methods may irreversibly contaminate the evidence from the child, making
determination of what really happened impossible. Equally troubling concerns have been raised about the accuracy of
hearsay testimony presented by mental health and other professionals on behalf
of the child in suspected sexual abuse cases. Hearsay testimony based on the
mental health practitioner's recollection or by means of written summaries have
been found to be notably inaccurate. Considerations of due process of law are
noteworthy, particularly when it might be argued that improper interviewing
methods as well as ambiguity and misperception in hearsay can compound other
risks to accuracy. Given these concerns, hearsay testimony may be unable to
meet judicial criteria of "sufficient indicia of reliability."
Videotaping all interviews can
be advocated on several grounds. Videotaping not only allows review of the
interviewing methods and accuracy in recounting what transpired, but also may
protect the child from the trauma of repeated, suggestive, and possibly even
coercive interviews. The arguments against
videotape recording do not stand up well, especially in light of the recent
pilot project conducted in California.
In suspected sexual abuse cases, the manner
in which interviews have been conducted and testimony handled has not been good
science, good clinical practice, and perhaps not even good law. Methods of
interviewing lack scientific objectivity and insight. Hearsay which lacks
"sufficient indicia of reliability" would then fail to meet criteria
for admissibility. Both improper interviewing and inaccurate hearsay could very
well fail to ensure due process of law. These concerns are understandably
troubling to all concerned. The time for thoughtful consideration
of the process of investigating and trying suspected sexual abuse cases has
undoubtedly come.
This makes a lot of sense. The collection and recording of the evidence of children should not be left to amateurs.
ReplyDeleteWow James! You really did your homework on this one!
ReplyDeleteThe Cambodian way of dealing with cases of child abuse violates EVERY element described in this article!
1. Child 'Protection' NGOs have a vested interest in the outcome of the interviews.
2. APLE detains children in Hagar International until the trial to prepare them for their statement in court
3. Children are questioned at least 3 times (police,investigating judge & during trial)
4. There have been reports of APLE staff manipulating the children by saying "The other kids have told us everything already. You can tell us too! We're your friends!"
5. Children are being interviewed by people with high authority (police in uniforms and lawyers and judges wearing robes), as if they were the suspect of the crime.
6. Questions are highly suggestive and even manipulative at times.
Solutions:
- Child 'Protection' NGOs should not be doing police work. Only police should do police work!
- Child 'Protection' NGOs should not even be allowed to come near the children!
- Children should not be detained at Hagar International. Children should be allowed to go home before and after the interview.
- Children should only be interviewed once. The interview should be conducted by a trained police specialist.
- The interview should be recorded on videotape by two cameras; one filming a closeup and one filming an overview of the room.
- An independent expert with an academic background in child psychology should be present in a separate room, monitoring the interview with headphones and a TV-screen or behind mirrored glass.
- The independent expert reports to the court, advising the court on the reliability of the testimony and whether the interview was conducted according to the protocols.
- The independent expert also checks whether the written transcript of the interview is a correct representation of what has actually been said.
- The independent expert can of course never be employed by one of the NGOs involved in the Child 'Protection' Industry
I hate to admit to it, but I have done very little homework. It took me less than an hour to find a wealth of material on the internet related both to the problems inherent in interviewing children and the solutions to the problems.
Deleteit seems to be to be a no-brainer that appropriate protocols should be put in place, agreed to and accepted upon by all NGOs involved in the apprehension and prosecution of alleged sex offenders. Interestingly, there is not one NGO that I have presented this idea to that has responded in any way. I will not conjecture here as to why this should be so but I think that the answer is obvious.
I would like to think that an NGO such as LICADHO would take this ball and run with it but LICADHO seems to have no interest at all.
Given that I am under fairly regular attack here I eagerly await attacks from those who believe that the development of protocols relating to video-taping of interviews with children, along the lines suggested in the article above, is a bad idea!
The idea of a video child welfare unit is way overdue. None of the usual suspect should have anything to do with it though. If it is not totally independent it will be open to precisely the same sorts of corruption that the current set up is subject to
ReplyDeleteI do not pretend to any expertize when it comes to videotaping the evidence of children but will offer the following as discussion points.
ReplyDelete- In the absence of a name I will call the unit I have in mind the Cambodian Child Protection Video Unit. CCPVU.
- The CCPVU should operate completely independently of any and all NGOs that may have (or which may appear to have) a vested interest in the outcome of any criminal cases that might arise from the videotaped interviews conducted with children.
- The CCPVU should be made up predominantly of appropriately trained Khmer professionals. If there are insufficient of such professionals right now, Khmer men and women with degrees in child psychology could be provided with specialist training by experienced non-Khmer professionals.
- It may be, at the outset, that it is necessary for there to be one or more non-Khmer personnel involved, for training purposes, in the setting up of the CCPVU. However, the unit should be set up in such a way that these non-Khmer personnel can be phased out of the CCPVU within a couple of years.
....to be continued...
....
DeleteI admit here to a personal bias. Just as I am opposed to the outsourcing of criminal investigations into child sex abuse to non-Khmer NGOs, I am opposed to the setting up of yet another NGO that provides yet more non-Khmer NGOs with an opportunity to get their snouts in the NGO funding trough; yet more NGOs with opportunities to big-note themselves on their websites and Facebook as the saviors of Cambodian children from the evils of child sex abuse.
- With appropriate assistance and advice I am sure that Cambodians can run such a unit without a gaggle of highly paid and non-Khmers presenting themselves to the media as being the only option available if Cambodia is to rid itself of sex abusing pedophiles.
- For similar reasons I believe that the CCPVU should not engage in the photo opportunity style of investigation favoured by other Child Protection Units. Whilst there is no need for the members of the CCPVU to remain anonymous, nor is there any reason why they should appear on TV shows or give interviews to sensationalist newspapers that amount for advertisements for their NGO. Their job is strictly professional. They are not, should not be, media stars.
...to be continued...
....
Delete- The CCPVU should be set up in such a way that it is as close to impossible as it can be fort the unit to be corrupted by either (a) an alleged perpetrator of a sex crime with a lot of money or (b) an NGO with a lot of money and a desire to see its arrest and conviction rate kept high to satisfy donors and sponsors.
- CCPVU staff should be not only be qualified professionals but should be paid well enough such that they are not even tempted to accept corrupt payments from either alleged perpetrators or corrupt NGOs.
- Mechanisms need to be in place to minimize the possibility that any one member of the CCPVU team, or the team as a whole, can be corrupted by offers of money so high that they are difficult to refuse.
- Interviews should be conducted with two cameras filming such that there is no part of the room in which the interviews take place that are not covered visually. It is imperative that the possibility does not exist for anyone in the room to use gestures or facial expressions to elicit desired responses from children.
- The Cambodian judiciary, the police and the Anti Human Trafficking Unit, should all be encouraged to play an active part in the preparation of videotape interviewing protocols of the kind being being suggested here. The more the CCPVU reflects the wishes and desires of the Cambodian police and judiciary the better. If the police and judiciary do not provide their support for the implementation of such protocols it is highly likely that they will be subverted, in reality, when cases are presented to the courts.
- All NGOs involved in any way with the protection of children from sexual abuse should be invited to make their own submissions regarding the setting up of a unit of the kind I have in mind. All submissions should be made public (published online) and there should be ample opportunity for all ideas relating to such a unit to be discussed and debated in a public forum.
- A unit of the kind I have in mind will only be effective if it is recognized by all stake-holders as being fair to all involved. For this reason, a long period of consultation is required such that when the protocols are agreed upon no individual, no NGO, can complain that they were not adequately consulted.
- Cambodia has more than enough NGOs already so I am not suggesting the creation of a completely new NGO. It would be preferable, in my view, if such a team were to be part of an already existing NGO that has no ties at all to any NGO already involved the pursuit and prosecution of sex offenders. Ideally such an NGO would have a strong human rights focus.
- The most ideal location for the CCPVU would be within the Ministry of Justice if it is set up in such a way as make it impossible for the unit to be corrupted. I am sure this is possible with the right planning and forethought. Locating the CCPVU within the Ministry of Justice would make the Minister for Justice responsible for the unit’s adherence to its own protocols. This is as it should be.
I am sure that there are many issues that I have not addressed here. And perhaps valid objections that have not occurred to me in relation to the kind of CCPVU I have in mind. All suggestions, comments and criticisms will be welcomed.
Looks pretty solid. The only problem is how to prevent that children are being pressured and manipulated before they enter the interview room!
DeletePressure could still come from parents that are eager to get the $5000, promised to them by the NGO.
Pressure could still come from the NGO that has the children in custody.
For this reason NGOs that have as their main priority to catch sex-offenders should not even be allowed to come near children!
I am working on the presumption, from the time an arrest is made or an investigation instigated, that the child (or children) are not interviewed by anyone so that the CCPVU team would be the first to do so.
DeleteI am also working on the presumption that members of this team will be highly skilled in conducting interviews and be able to detect, fairly quickly, when and it a child has been coached. This is why the employment of trained professionals is so important. Amateurs can so easily influence children in all the ways mentioned in this article - either intentionally or unintentionally.
Hopefully someone with experience in this field can contribute to this discussion thread.
The "Cambodian Mafia" appears to be so widespread that the NGOs and others that you have contacted are either a part of the Mafia or they are too cowardly to publicly oppose the Mafia. You have been very generous in giving all of them an opportunity to change their modus operandi and/or to come forward with the truth about the railroading of innocent men like David Fletcher.
DeleteIt will probably take the international release of your documentary and book with the facts of the widespread corruption in Cambodia to effect any real change there. The corruption is fed by well-meaning donors who will stop donating when they learn how those funds are being used.
You are to be commended for your efforts on behalf of the children of Cambodia and the innocent men imprisoned by the actions of corrupt NGOs and officials.
WOW anonymous 6:35! You are so right!
ReplyDeleteCan anyone confirm for me if James McCabe is the head of CCF's CPU? Is he a convicted felon for stealing drugs during a police bust, with the intent to resell, while he was working for the Australian Police? Did he do time? Did he meet his current wife in a 'seedy bar', when she was working there and was she only 16 years old?
ReplyDelete